HATTIE L. DAMES, APPELLANT,

v.

JOSEPH DAMES, APPELLEE

Fla. 3d DCA | 1963-10-08

No. 62-298

Before HORTON, TILLMAN PEARSON, and HENDRY, JJ.

156 So. 2d 532 Florida District Court of Appeal, Third District (1963) Positive Treatment

Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

The court held that a petition for review of a cost judgment must be filed within 20 days of its entry, and a motion for rehearing does not toll this time.

Facts & Procedural History

Petitioner sought review of a cost judgment, relying on a motion for rehearing to toll the appeal time. The court considered whether this motion exten…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

Topics

Tolling Of Time Periods Rendition Of Judgment Motion For Rehearing

Explore caselaw by topic → Browse Tolling Of Time Periods cases and more on FLexlaw

Opinion of the Court

HORTON, Judge.

Joseph Dames seeks, by petition under Rule 3.16, Florida Appellate Rules, 31 F. S.A., a review of a judgment for costs. We conclude that the petition should be dismissed upon the ground that it was not timely filed as required by Rule 3.16(c), supra. This rule provides that a petition to review a cost judgment be filed “within 20 days after the entry of said judgment[Emphasis supplied.]

The record before us discloses that the cost judgment sought to be reviewed was entered on April 26, 1963. A petition for rehearing, allegedly duly filed, was denied on June 27, 1963. The petition to review costs was filed in this court on July 17, 1963.

Unlike the provisions of Rule 3.16(c), supra, the rule governing appeals generally in civil cases, Rule 3.2(b), Florida Appellate Rules, permits appeals from judgments, orders or decrees "within 60 days from the rendition of the * * * order, judgment or decree * * *.” [Emphasis supplied] Rule 1.3, Florida Appellate Rules defines rendition as the signing, recording, and if recording is not required, then the filing of the order, judgment or decree. This rule further provides:

"Where there has been a timely and proper motion or petition for a new trial, rehearing or reconsideration by the lower court, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.” [Emphasis supplied]

Obviously the rule makers, by the use of the word “entry” did not intend to permit the tolling of the time for filing petitions for the review of cost judgments; otherwise they would have used the word “rendition.” Undoubtedly they were well aware of the meaning as well as the effect of the two words used. It is unlikely that the promulgators of the appellate rules would have intended the same result by the use of different words. Cost judgments as a rule are post-judgment in character and as such, their review is by petition with accelerated procedural steps.

The court having noted the jurisdictional defect, ex mero motu concludes that the petition should be dismissed.

It is so ordered.

HENDRY, Judge

(concurring specially).

The majority opinion holds that under Florida Appellate Rule 3.16(c) the review of a cost judgment must be commenced within the 20 days from the “entry” of the cost judgment.

I agree with the majority conclusion that the petition for review in this case must be dismissed in that it is untimely. However, I can not agree that the use of the word “entry” instead of “rendition” has any significance.

Our Supreme Court has held that both words mean “recorded in the minutes of the court.”1 Moreover, even before the word “rendition” was specifically used or defined in the Florida Appellate Rules, our courts recognized that a timely motion for rehearing or new trial tolls the running of appeal time. In fact, Florida Appellate Rule 6.2, relative to criminal appeals, provides for the taking of an appeal by the defendant within 90 days after judgment is *534“entered”, etc. It appears to be uniformly held that' the 90 day period is tolled pending the disposition of a timely and proper motion for a new trial.2

In this case the petitioner relied upon a motion for rehearing of a cost judgment to toll the time for filing his petition for review of said judgment. I do not find any provision which allows the filing of a motion for rehearing of a cost judgment. Therefore, such motion could not extend the time for filing the petition for review beyond 20 days from the entry of a cost judgment. I would affirm for the reasons stated.

Concurrence

HENDRY, Judge

(concurring specially).

The majority opinion holds that under Florida Appellate Rule 3.16(c) the review of a cost judgment must be commenced within the 20 days from the “entry” of the cost judgment.

Our Supreme Court has held that both words mean “recorded in the minutes of the court.”1 Moreover, even before the word “rendition” was specifically used or defined in the Florida Appellate Rules, our courts recognized that a timely motion for rehearing or new trial tolls the running of appeal time. In fact, Florida Appellate Rule 6.2, relative to criminal appeals, provides for the taking of an appeal by the defendant within 90 days after judgment is “entered”, etc. It appears to be uniformly held that' the 90 day period is tolled pending the disposition of a timely and proper motion for a new trial.2

. Brenner v. Gelernter, Fla.1956, 90 So. 2d 306.

.See Shelby v. State, 155 Fla. 182, 20 So. 2d 500, 21 So. 2d 787; Lee v. State, 128 Fla. 319, 174 So. 589; Miller v. State, Fla.App.1961, 134 So. 2d 513.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Chatlos v. City OF Hallandale, 220 So. 2d 353 (Fla. 1968)

…ovington, Fla.App.3rd 1959, 114 So. 2d 320; In re Carol Florida Corp., Fla.App.3rd 1960, 118 So. 2d 837; Dade County v. Cross, Fla.App.3rd 1961, 127 So. 2d 141; Horner v. State, Fla. App.3d 1963, 148 So. 2d 553, and Dames v. Dames, Fla.App.3rd 1963, 156 So. 2d 532. . See cases cited in footnote 4. . Compare Jacksonville Terminal Co. v. Blanchard, Fla.1919, 77 Fla. 855, 82 So. 300; De Soto County v. Highsmith, Fla. 1952, 60 So. 2d 915. . De Soto County v. Highsmith, note 6 supra.…
Craft v. Marcel Clarembeaux, 162 So. 2d 325 (Fla. 2d DCA 1964)

…ted to those cases involving the taxation of costs by a lower court when the cause has been in an appellate court and recurs below on mandate of the appellate court. See Abrams v. Gresham, Fla.App.1962, 136 So. 2d 380; Dames v. Dames, Fla.App. 1963, 156 So. 2d 532. In determining that Rule 3.16(c) is applicable only as a means of reviewing cost judgments entered after entry of an appellate court’s mandate in the cause, we are not unmindful of the rule’s provision that if a party feel aggrieved “by any judgme…
City OF Hallandale v. Chatlos, 211 So. 2d 53 (Fla. 4th DCA 1968)

…ns has been fraught with confusion in this state. There are decisions to the effect that a cost judgment is reviewable only by petition under F.A.R. 3.16(c). See Giovannielli v. Lacedonia, Fla.App.1965, 179 So. 2d 407; Dames v. Dames, Fla.App. 1963, 156 So. 2d 532; Horner v. State of Florida, Fla.App. 1963, 148 So. 2d 553. The foregoing decisions were rendered by our sister court of the Third District. In Craft v. Clarembeaux, Fla.App.1964, 162 So. 2d 325, our sister court of the Second District has taken a d…

Authorities Cited

Lee v. State, 128 Fla. 319 (Fla. 1937)
Howard Johnson, Inc. v. State Rd. Dep't OF Fla., 90 So. 2d 306 (Fla. 1956)
Miller v. State, 134 So. 2d 513 (Fla. 1st DCA 1961)
Shelby v. State, 155 Fla. 182 (Fla. 1944)
Shirey v. Zella Dowling, 155 Fla. 433 (Fla. 1945)
Hattie L. Dames v. Dames, 149 So. 2d 570 (Fla. 3d DCA 1963)
Vesta Corp. v. McGAHA, 155 So. 2d 616 (Fla. 1963)

Full citator, related cases, and AI research tools

Open in FLexlaw